Citation Nr: 0027176
Decision Date: 10/13/00 Archive Date: 10/19/00
DOCKET NO. 97-23 943 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for residuals of
a head injury, to include an acquired psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1969 to September
1970 and from May 1974 to September 1974.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 1997 decision by the
Chicago, Illinois, Regional Office (RO) of the Department of
Veterans Affairs (VA).
FINDINGS OF FACT
1. An unappealed rating decision dated in February 1978
denied service connection for residuals of a head injury.
2. The evidence received since the February 1978 rating
decision is not so significant that it must be considered in
order to fairly decide the merits of the veteran's claim.
CONCLUSIONS OF LAW
1. A rating decision in February 1978 denying entitlement to
service connection for residuals of a head injury is final.
38 U.S.C.A. § 7105 (West 1991).
2. Evidence received since February 1978 is not new and
material, and the veteran's claim for service connection for
residuals of a head injury, to include an acquired
psychiatric disorder, is not reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran was denied entitlement to service connection for
residuals of a head injury by a February 1978 rating
decision. While the RO correctly determined in February 1997
that in November 1995 [sic 1993] the veteran's application to
reopen a claim for service connection for the residuals of a
September 1970 automobile accident had been denied, the Board
observes that the claim currently on appeal deals with
service connection for residuals of a head injury, including
aggravation of a preexisting disability during the veteran's
second period of service. In this regard, the Board notes
that in December 1998, the veteran stated that his "entire
contention is that my second period of service was
detrimental to my condition because of the attack by my
shipmates." As the November 1993 RO determination denying
the veteran's application to reopen his claim limited its
analysis to the September 1970 automobile accident, the Board
finds that the last final prior denial of the veteran's claim
on appeal for residuals of a head injury was the February
1978 rating decision, not the November 1993 determination.
The February 1978 rating decision is final, 38 U.S.C.A.
§ 7105, and the claim may only be reopened if new and
material evidence is submitted. See 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a). When a claim to reopen is presented,
the VA must perform a three-step analysis, the first step of
which is a determination of whether the evidence presented or
secured since the last final disallowance of the claim is
"new and material." See Elkins v. West, 12 Vet.App. 209,
218-19 (1999) (en banc); see also 38 U.S.C.A. § 5108; Hodge
v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998); 38 C.F.R.
§ 3.156(a) (new and material evidence is "evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim"). Second, if
the VA determines that the evidence is new and material, the
VA must reopen the disallowed claim and determine "whether
the appellant's claim, as then reopened, is well grounded in
terms of all the evidence in support of the claim, generally
presuming the credibility of that evidence." Elkins, 12
Vet.App. at 218-19. Third, if the claim is well grounded,
the VA must comply with his duty to assist in the development
of the claim under 38 U.S.C. § 5107(a), and then readjudicate
the claim on the merits on the basis of all evidence of
record. See Winters v. West, 12 Vet.App. 203, 206 (1999) (en
banc) (discussing the three-step analysis set forth in
Elkins), overruled on other grounds sub nom. Winters v.
Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra.
The second and third steps become applicable only when each
preceding step is satisfied. See Vargas-Gonzalez v. West, 12
Vet.App. 321, 325 (1999).
At the time of the February 1978 rating decision, the
evidence consisted of the veteran's service medical records,
private medical records, VA examinations and VA treatment
records, and statements from the veteran.
An October 1970 private medical record indicated that the
veteran was involved in an automobile accident (September 27,
1970) that resulted in a cerebral contusion and right frontal
scalp laceration. In a December 1971 letter from the
veteran's private physician, it was noted that the major
problem the veteran suffered as the result of his September
1970 automobile accident was a reduced attention span and a
loss of emotional control. A February 1972 VA
neuropsychiatric examination noted that the veteran's memory
was poor and that he was unable to participate in any serious
conversation. The diagnosis was chronic brain syndrome,
secondary to cerebral and intracranial trauma. No
psychiatric disorder was noted on the veteran's January 1974
entrance examination. A July 1974 service medical record
contains an impression of an immature personality. An August
1974 service medical record indicates that the veteran was
"beat up." The record described injuries to the veteran's
back. In an October 1977 statement the veteran indicated
that he was "beaten while aboard ship" in 1974 and had
suffered head injuries from the beating. No psychiatric
disorder was noted on the veteran's September 1974 separation
examination.
A February 1978 rating decision denied the veteran's claim of
service connection for residuals of a head injury on the
basis that there was no indication of a head injury during
service. It was noted that the September 1970 automobile
accident had happened after the veteran's first period of
service, and that, as a result of the accident, the veteran
suffered from chronic brain syndrome secondary to cerebral
and intracranial trauma.
The additional evidence includes VA records reflecting
treatment for the veteran's chronic brain syndrome. A May
1973 VA discharge summary reflected diagnoses of inadequate
personality and non-psychotic organic brain syndrome with
brain trauma. An April 1974 and December 1974 VA discharge
summary showed that the veteran suffered from non-psychotic
organic brain syndrome with brain trauma and encephalitis
secondary to a September 1970 automobile accident. A June
1991 letter from the veteran's private physician indicated
that he had treated the veteran for chronic anxiety since
1986. A November 1993 VA administrative decision determined
that the veteran was not on active duty when he suffered
injuries as the result of an automobile accident in September
1970.
At his July 2000 Board videoconference hearing, the veteran
testified that he was beaten and kicked by a group of service
members during his second period of service. He stated that
the beating aggravated his problems that had resulted from
his September 1970 automobile accident. He stated that he
had no psychiatric problems prior to his second period of
service but did state that he was "just slow."
The Board finds that the additional evidence is not new
because it is essentially cumulative of previously considered
evidence. See 38 C.F.R. § 3.156. That is, while some of the
additional evidence was not previously on file, it merely
confirms what was already known. The record remains devoid
of medical evidence indicating that the veteran currently has
residuals of a head injury reportedly sustained during
service. There is also no medical evidence which shows that
an acquired psychiatric disorder, which might have been due
to the September 1970 motor vehicle accident or otherwise
preexisted the veteran's second period of service, was
chronically worsened during or as a result of his second
period of active service from May 1974 to September 1974. In
fact, as to the veteran's contention that he had a
preexisting psychiatric disability that was aggravated during
service, the Board notes that the service medical records,
including the September 1974 separation examination, show no
complaints of or treatment for a head injury. Under these
circumstances, the Board must conclude that any disorder that
may have preexisted service was not worsened or aggravated
while the veteran was on active duty.
Accordingly, the Board concludes that the evidence submitted
subsequent to the February 1978 rating decision is not "new
and material" as contemplated by 38 C.F.R. § 3.156(a), as
the additional evidence is not material and, by itself or in
connection with evidence previously assembled, is not so
significant that it must be considered in order to fairly
decide the merits of the veteran's claim. See 38 U.S.C.A.
§ 5108; Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).
Thus, the veteran's claim of entitlement to service
connection for the residuals of a head injury, to include an
acquired psychiatric disorder, is not reopened.
The Board has not been made aware of any evidence which might
be new and material, but which has not been submitted with
the application. See 38 U.S.C.A. § 5103(a); Graves v. Brown,
8 Vet. App. 522, 525 (1996).
ORDER
New and material evidence not having been submitted, the
veteran's claim for service connection for residuals of a
head injury, to include an acquired psychiatric disorder, is
not reopened, and the appeal is denied.
RAYMOND F. FERNER
Acting Veterans Law Judge
Board of Veterans' Appeals